remanded H-1B Case: Computer Science

PUBLIC COPY 
U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: WAC 04 248 5085 1 Office: NEBRASKA SERVICE CENTER Date: JU)J 0 5 2006 . . 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Chief 
Administrative Appeals Office 
WAC 04 248 5085 1 
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DISCUSSION: The service center director denied the nonimmigrant visa petition and the matter is now before 
the Administrative Appeals Office (AAO) on appeal. The director's decision will be withdrawn. The petition 
will be remanded to the director for entry of a new decision. 
The petitioner is a computer and engineering consulting firm that seeks to employ the beneficiary as a computer 
programmer. The petitioner endeavors to classify the beneficiary as a nonimmigrant worker in a specialty 
occupation pursuant to section 10 l(aX 15)(H)(iXb) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
6 1 10 1 (a)(l5)(H)(iXb). 
The director determined that the petitioner had not established that it would be the employer of the beneficiary, 
and failed to provide an itinerary of services and engagements. The director determined that the evidence 
submitted did not establish that the petitioner would work as a computer programmer in-house at the petitioner's 
business location in Fremont, CA as noted on the Labor Condition Application (LCA) and, as such, Citizenship 
and Immigration Services (CIS) could not determine the working conditions of the beneficiary. 
The record establishes that the petitioner will be an employer under 8 C.F.R. 5 214.2(h)(4)(ii). The petitioner 
provided an itinerary detailing the duties the beneficiary would be providing the petitioner as an in-house 
employee. The petitioner provided corroborating evidence to establish that it will be the employer of the 
beneficiary and that it has computer programmer employment available at its place of employment on a 
project integrating Siebel eBusiness Applications with the KnowNow Live Server. The petitioner provided a 
reseller agreement entered into with the KnowNow corporation and documentation establishing the in-house 
nature of the assignment. The evidence provided sufficiently answers the concerns of the director that the 
petitioner had not established that it would be the beneficiary's employer and that it had not provided an 
itinerary of its services or engagements. The director's decision addressing these issues is withdrawn. 
The petition may not be approved, however, as the record does not establish that the position is a specialty 
occupation. 
Section 10l(a)(l 5)(H)(i)(b) of the Act, 8 U.S.C. 5 1 lOl(a)(lS)(H)(i)(b), provides, in part, for the 
classification of qualified nonimmigrant aliens who are coming temporarily to the United States to perform 
services in a specialty occupation. 
Section 214(i)(l) of the Act, 8 U.S.C. 5 1184(i)(l), defines the term "specialty occupation" as an occupation 
that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a 
minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. 8 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, architecture, 
engineering, mathematics, physical scienges, social sciences, medicine and health, education, 
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business specialties, accounting, law, theology, and the arts, and which requires the attainment of 
a bachelor's degree or higher in a specific specialty, or its equivalent, as a minimum for entry 
into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(1) A baccalaureate or higher degree or its equivalent is normally the minimum requirement 
for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among similar 
organizations or, in the alternative, an employer may show that its particular position is 
so complex or unique that it can be performed only by an individual with a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties are so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or 
higher degree. 
Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
$214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty that is 
directly related to the proffered position. 
The record of proceeding before the AAO contains: (1) the Form 1-129 and supporting documentation; (2) 
the director's request for additional evidence; (3) the petitioner's response to the director's request; (4) the 
director's denial letter; and (5) the Form I-290B with counsel's brief. The AAO reviewed the record in its 
entirety before issuing its decision. 
The petitioner is seeking the beneficiary's services as a programmer analyst. Evidence of the beneficiary's 
duties includes the Form 1-129 petition with attachment and the petitioner's response to the director's request 
for evidence. The petitioner is presently working in-house to integrate Siebel eBusiness applications with the 
KnowNow Live Server. Upon completion of the project, the information may be published and subscribed 
from Siebel to KnowNow using the petitioner's custom built Siebel-KnowNow adapter. According to this 
evidence the beneficiary would: 
Train on Siebel eBusiness applications developing an understanding of the Siebel 
Adapter Development Kit API's using VC++ and MFC; 
Develop a Siebel KnowNow VC++ Adapter Class which would be used by the petitioner 
to implement Siebel KnowNow Integration Solutions in the market; 
Analyze, design and implement software in distributed computing using relational 
databases; 
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Implement and monitor various database related processes; 
Prototype development to validate new technologies in relational databases, using the 
following languages: Oracle; PLJSQL; SQL; WIN32; SDK; MFC; ActiveX; Multi 
Threading; and the Solaris, and WIN 2000/NT/98operating system, with Sun Sparc 
hardware. 
The petitioner requires a minimum of a bachelor's degree for entry into the offered position, and finds the 
beneficiary qualified for the position by virtue of her foreign degree which has been determined by a 
credentials evaluation service to be equivalent to a bachelor of science degree in computer science and 
engineering from an accredited college or university in the United States. 
The AAO routinely consults the U.S. Department of Labor's Occupational Outlook Handbook (Handbook) 
for information about the duties and educational requirements of particular occupations. The duties of the 
proffered position are essentially those noted for computer programmers. Although there are many training 
paths available for programmers due to varied employer needs, the level of education and experience 
employers seek has been rising due to the growing number of qualified applicants and the specialization 
involved with most programming tasks. Bachelor's degrees are commonly required, although some 
programmers may qualify for certain jobs with 2-year degrees or certificates. The associate degree is a 
widely used entry-level credential for prospective computer programmers. In the absence of a degree, 
substantial specialized experience or expertise may be needed, and employers appear to place more emphasis 
on previous experience even when hiring programmers with a degree. Some computer programmers hold a 
college degree in computer science, mathematics, or information systems, while others have taken special 
courses in computer programming to supplement degrees in other fields. As the level of education and 
training required by employers continues to rise, the proportion of programmers with a college degree should 
increase in the future. In 2004, more than two-thirds of computer programmers held a bachelor's or higher 
degree. Presently, however, it cannot be determined that a bachelor's degree in a specific specialty is 
normally the minimum requirement for entry into the proffered position. The petitioner has not, therefore, 
established that a baccalaureate or higher degree in a specific specialty, or its equivalent, is normally the 
minimum requirement for entry into the proffered position. 8 C.F.R. tj 214.2(h)(4)(iii)(A)(l). Programmers 
are still employed in the industry in substantial numbers with less than a baccalaureate level education. 
The record does not establish that the nature of the specific duties is so specialized and complex that the 
knowledge required to perform them is usually associated with the attainment of a baccalaureate or higher degree. 
While the duties of the offered position require the beneficiary to develop customized computer applications 
integrating Siebel eBusiness applications with the KnowNow Live Server, which would then be marketed by the 
petitioner using its Siebel-KnowNow adapter, the record does not indicate that these duties are so specialized and 
complex in nature that they are normally performed by individuals who have obtained a baccalaureate level 
education, or its equivalent, in such fields as computer science, mathematics, or information systems. As the 
director did not determine whether the position is a specialty occupation, the petition will be remanded in order 
for the director to make that determination, and to consider whether the beneficiary is qualified to perform the 
duties of a specialty occupation. The director may obtain such additional information as he deems necessary in 
rendering his decision. 
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As always, the burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. 5 1361. 
ORDER: The director's decision is withdrawn. The petition is remanded to the director for entry of a new 
decision commensurate with the directives of this opinion, which, if adverse to the petitioner is to be 
certified to the AAO for review.